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Work Health and Safety Bill 2011



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ISSN 1328-8091

Parliament of Australia Department of Parliamentary Services

Contents

Purpose .................................................................................................................................................... 4

Background .............................................................................................................................................. 4

Comcare ......................................................................................................................................... 4

Amendments in 2005 .................................................................................................................... 5

Moves to harmonise OHS laws ...................................................................................................... 5

Endorsement by Council of Australian Governments ................................................................... 6

Basis of policy commitment ................................................................................................................ 7

Committee consideration ................................................................................................................... 8

Policy position of non-government parties ........................................................................................ 8

Position of major interest groups ....................................................................................................... 8

Main issues............................................................................................................................................... 9

Financial implications ............................................................................................................................. 10

Key provisions ........................................................................................................................................ 10

Part 1—Preliminary........................................................................................................................... 10

Part 2—Health and safety duties ...................................................................................................... 11

Duties of persons conducting a business or undertaking ............................................................ 11

Duties of officers, workers and other persons ............................................................................ 12

Offences and penalties ................................................................................................................ 13

Part 3—Incident notification ............................................................................................................ 14

BILLS DIGEST NO. 29, 2011-12 17 August 2011

Work Health and Safety Bill 2011

Steve O'Neill Economics Section

Mary Anne Neilsen Law and Bills Digest Section

Mary Anne Neilsen

Part 4—Authorisations ..................................................................................................................... 14

Part 5—Consultation, representation and participation .................................................................. 15

Consultation with workers........................................................................................................... 15

Health and safety representatives ............................................................................................... 15

Subdivision 2—Determination of work groups ...................................................................... 15

Subdivision 3—Multiple-business work groups ..................................................................... 16

Subdivision 4—Election of health and safety representatives ............................................... 16

Subdivision 5-Powers and functions of health and safety representatives .......................... 17

Subdivision 6—Obligations of PCBUs to health and safety representatives .......................... 17

Health and safety committees ..................................................................................................... 18

Issue resolution ............................................................................................................................ 18

Right to cease or direct cessation of unsafe work ....................................................................... 19

Provisional improvement notices ................................................................................................ 19

Part 6—Discriminatory, coercive and misleading conduct ............................................................... 20

Prohibition of discriminatory, coercive or misleading conduct ................................................... 20

Criminal proceedings in relation to discriminatory conduct ....................................................... 21

Civil proceedings in relation to discriminatory conduct .............................................................. 22

General ........................................................................................................................................ 22

Part 7—Workplace entry by WHS entry permit holders .................................................................. 22

Entry to inquire into suspected contraventions .......................................................................... 22

Entry to consult and advise workers ........................................................................................... 23

Requirements for WHS entry permit holders .............................................................................. 23

WHS entry permits ...................................................................................................................... 24

Dealing with disputes .................................................................................................................. 25

Prohibitions .................................................................................................................................. 25

General ........................................................................................................................................ 25

Part 8—The regulator ....................................................................................................................... 25

Part 9—Securing compliance ............................................................................................................ 26

Part 10—Enforcement measures...................................................................................................... 26

Part 11—Enforceable undertakings .................................................................................................. 27

Part 12—Review of decisions ........................................................................................................... 27

Part 13—Legal proceedings .............................................................................................................. 28

Prosecution of offences ............................................................................................................... 28

Sentencing ................................................................................................................................... 28

Infringement notices ................................................................................................................... 29

The Commonwealth .................................................................................................................... 29

Public authorities ......................................................................................................................... 30

WHS civil penalty provisions ........................................................................................................ 30

Part 14—General .............................................................................................................................. 31

Schedules .......................................................................................................................................... 32

Appendix ........................................................................................................................................... 32

Concluding comments ........................................................................................................................... 32

4 Work Health and Safety Bill 2011

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Work Health and Safety Bill 2011

Date introduced: 6 July 2011

House: House of Representatives

Portfolio: Education, Employment and Workplace Relations

Commencement: 1 January 2012

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The Work Health and Safety Bill 2011 (the Bill) represents the Commonwealth’s input to the national harmonisation of occupational health and safety laws that has been undertaken by the Commonwealth, states and territories over 2011. Should passage of the model Bill be successful across the nine legislatures, Australia will have adopted a nationally harmonised system of occupational (work) health and safety (OHS) laws to operate from January 2012. The harmonised Acts will replace existing OHS laws in the Commonwealth, states and territories.

Background

Comcare

The Commonwealth’s involvement in private sector workplace safety followed changes to the Commonwealth’s workers’ compensation scheme, Comcare, in 1992. Comcare was established in 1988 as the major body responsible for the rehabilitation and compensation, and the prevention of injury for Commonwealth employees.1 Commonwealth OHS legislation commenced in 1991 but was confined to Commonwealth employees.2

Amendments to the Commonwealth’s workers’ compensation system in 1992 allowed a limited number of private sector corporations, specifically those in competition with privatised Commonwealth entities, to apply for coverage of their workforces under Commonwealth arrangements should they choose. A successful application had the effect of removing the corporation’s workforce from state workers’ compensation arrangements. Privatised

1. Commonwealth Employees' Rehabilitation and Compensation Act 1988. 2. Occupational Health and Safety (Commonwealth Employment) Act 1991.

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Commonwealth entities also continued their Commonwealth workers’ compensation arrangements.3

As more Commonwealth entities were privatised in the 1990s across diverse industries, the issue of private sector access to the Commonwealth scheme (and thus removal from state schemes) took on a greater focus. Nationally operating businesses have sought access to the Commonwealth scheme to: drive down the cost of workers’ compensation; in many cases improve the benefits to employees and promote administrative consistency and efficiency for the company and its employees. Many have taken the opportunity to self insure under the Commonwealth scheme. The Safety Rehabilitation and Compensation Commission’s (SRCC) annual report lists 27 corporations and two Commonwealth authorities which have obtained licences.4

Amendments in 2005

The Howard Government introduced amendments to both OHS and workers’ compensation laws in 2005, allowing corporations which were granted licences under the Commonwealth workers’ compensation scheme also to be covered by Commonwealth OHS law. This initiative followed Productivity Commission recommendations to this effect.5 These amendments, together with more companies seeking Commonwealth licences, had the potential to sound the financial death knell of state based workers’ compensation systems because of the potential to redirect premiums from the states to the Commonwealth. The Victorian Government challenged the issuing of licences to Toll Holdings and Optus in the Federal Court and then in the High Court, with both challenges failing.6 These moves and counter moves, in short, enhanced the case for national uniformity in OHS and workers’ compensation arrangements across the three levels of government.

Moves to harmonise OHS laws

Recent attempts at national OHS arrangements commenced with the National Workplace Relations Ministers' Council (WRMC) in February 2008 agreeing to a Commonwealth proposal to appoint a National OHS Review Panel (the Review Panel) which would report on the architecture of a national OHS scheme. This agreement followed the decision of then Minister for Education, Employment and Workplace Relations, Julia Gillard MP, to halt the issue of new licences to corporations seeking to

3. Commonwealth Employees Rehabilitation and Compensation Act 1992 which also renamed the principal workers’ compensation Act as the Safety, Rehabilitation and Compensation Act 1988. 4. The SRCC acts as the policy formulation and advisor arm to Comcare; see: Safety, Rehabilitation and Compensation Commission, Annual report 2009-10, p. 31, viewed 19 July 2011,

http://comcare.gov.au/__data/assets/pdf_file/0004/69610/PUB01_Comcare_SRCC_annual_report_2010.pdf. 5. OHS and SRC Legislation Amendment Act 2006. Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks, recommendations cited in chapter 4, 6 March 2004. 6. Attorney-General (Vic) v Andrews (2007) 230 CLR 369, [2007] HCA 9, viewed 22 July 2011,

http://www.austlii.edu.au/au/cases/cth/HCA/2007/9.html. Victorian WorkCover Authority v Andrews [2005] FCA 94, viewed 22 July 2011, http://www.austlii.edu.au/au/cases/cth/FCA/2005/94.html

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migrate to the Commonwealth workers’ compensation scheme in December 2007 and foreshadowed OHS harmonisation, ultimately resulting in this Bill.7 The Bill was thus developed by the Commonwealth Government and the state and territory governments in consultation with industry, unions and safety regulators. The Gillard Government recently signalled the national uniformity of workers’ compensation as a future reform task, given the progress toward OHS harmonisation now evident.8

Endorsement by Council of Australian Governments

The WRMC harmonisation approach was endorsed by the Council of Australian Governments (COAG) in July 2008 in an Intergovernmental Agreement for Regulatory and Operational Reform in OHS.9 The Review Panel undertook extensive research and consultation with a broad range of stakeholders. The WRMC released a model Occupational Health and Safety Bill on 28 September 2009 for public comment, forming the centrepiece of the initiative to harmonise Australia’s OHS laws, although it must be appreciated that harmonisation means the passage of the model Bill through seven parliaments and two territory legislatures. The Review Panel later produced two reports containing a series of recommendations on issues which the model laws should address or include.10 The newly formed national OHS regulator, Safe Work Australia, was assigned the task of refining the Bill and developing the associated regulations.11

Harmonisation took a step further on 11 December 2009, with the WRMC endorsing the final terms of a model Work Health and Safety (WHS) Bill which included amendments to the September draft by Safe Work Australia arising from a public consultation process. WRMC agreed to adopt the draft WHS Bill which took into account any revisions by Safe Work Australia having received over 400 submissions in the public comment phase. One important change that was agreed to, was to replace

7. J Gillard (Minister for Education, Employment and Workplace Relations), Government announces moratorium on new companies joining Comcare, media release, 11 December 2007, viewed 19 July 2011, http://www.deewr.gov.au/Ministers/Gillard/Media/Releases/Pages/Article_081002_164449.aspx.

8. C Evans, (Minister for Tertiary Education, Skills, Jobs and Workplace Relations), ‘ACTU OHS and Workers’ Compensation conference: speech at the Royal on the Park’, Brisbane, 13 April 2011, viewed 19 July 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22media%2Fpressrel%2F760031% 22.

9. Council of Australian Governments, Intergovernmental Agreement for Regulatory and Operational Reform in OHS, 3 July 2008, viewed 20 July 2011, http://www.coag.gov.au/intergov_agreements/index.cfm. 10. The first Review Panel report was published on 31 October 2008, viewed 9 August 2011, http://www.nationalohsreview.gov.au/NR/rdonlyres/04029939-A70C-4852-BB69-

90DE659DFC44/0/NationalOHSReview_firstreport.pdf. The second Review Panel report was published on 30 January 2009, viewed 9 August 2011, http://www.nationalohsreview.gov.au/NR/rdonlyres/C90F4B10-D633-4EFA-AF76-6D3C24CBEA24/0/NationalOHSReview_secondreport.pdf 11. Draft model Work Health and Safety regulations can be viewed at: http://www.safeworkaustralia.gov.au/Legislation/PublicComment/Documents/Model%20work%20health%20and%2 0safety%20public%20comment%202010/Draft%20Model%20WHS%20Regulations%20public%20comment/ModelW orkHealthAndSafetyRegulations.pdf

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the word ‘occupational’ with the word ‘work’ wherever ‘occupational’ appeared. This change is reflected in the title of this Bill.

At the time of writing, the model WHS Bill has been introduced into the South Australian, Queensland and New South Wales parliaments and into the Legislative Assembly of the Australian Capital Territory.

Importantly, the text of the model WHS Bill has already been agreed under the Intergovernmental Agreement for Regulatory and Operational Reform in OHS. This means that there is, essentially, no scope for amendment by either the House of Representatives or the Senate if harmonisation of OHS laws across all the jurisdictions is to be achieved.

Basis of policy commitment

The Australian Labor Party’s 2007 federal election workplace health and safety policy states:

Despite broad areas of consistency there remain separate OHS laws in every state and territory in Australia, as well as two statutes at the Commonwealth level, and state-based industry specific safety laws, such as those covering the coal mining industry in Queensland.

While state and territory OHS laws are broadly consistent, and based on the primary outcome of achieving health and safety in the workplace, there remain some fundamental differences between these laws.

This means that multi-state businesses and those businesses that interact with cross border companies must navigate their way through numerous standards, laws and administrative processes to comply with laws and, in the event of an incident or injury, make a claim through the relevant scheme...

Labor has also committed to taking a leadership role for a coordinated national strategy to radically reduce the regulatory burden on Australian businesses. Part of this process, outlined earlier this year, includes Federal Labor working in partnership with the states and territories to harmonise key laws and regulations within five years of coming to office, including OHS regulation.

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12. J Gillard, Workplace Health and Safety, Australian Labor Party policy document, Election 2007, 27 October 2007, viewed 19 July 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=customrank;page=0;query=%22wo rkplace%20health%20and%20safety%22%20Decade%3A%222000s%22%20Year%3A%222007%22;rec=0;resCount=D efault.

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Committee consideration

This Bill and the Work Health and Safety (Transitional and Consequential) Bill 2011 were referred to the Senate Education, Employment and Workplace Relations Committee on 7 July 2011 for inquiry and report by 26 August 2011.13

Policy position of non-government parties

The Australian Greens have indicated a willingness to pursue amendments giving effect to union prosecutions during debate on the Bill.14

On the other hand, it would be surprising if the Coalition parties oppose the Bill, given that the New South Wales Government has already enacted the model legislation in that State. On introducing the model legislation in May 2011, Deputy Premier Andrew Stoner, said:

The Work Health and Safety Bill 2011 represents the commitment of the Government of New South Wales to full participation in a nationally harmonised system of occupational health and safety. The Bill enacts the nationally agreed model, the Work Health and Safety Act, with appropriate jurisdictional modifications. The Work Health and Safety Bill will be supplemented by model regulations and model codes of practice that are currently the subject of public consultation. It is proposed that this work health and safety legislation will be commenced by all Australian jurisdictions on 1 January 2012.

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Position of major interest groups

The Bill has general, although not uniform, support from business, governments and parliaments.

All states (except Western Australia) have agreed to implement the new laws by the end of 2011. Western Australia has agreed to keep its position under review until that time, but it is likely Western Australia could adopt ‘most’ of the proposed model Act.16

The Australian Chamber of Commerce and Industry criticised aspects of the Bill’s regulations in a 400 page submission, arguing that businesses could suffocate in red tape.17

13. Details of the terms of reference and the submissions to the inquiry can be viewed at: http://www.aph.gov.au/Senate/committee/eet_ctte/work_health_safety/index.htm 14. M Skulley ‘Greens want OHS reform’, Australian Financial Review, 2 June 2011, p. 5, viewed 20 July 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F808784%22. 15. A Stoner (Deputy Premier of NSW), ‘First reading speech: Work Health and Safety Bill 2011’, Legislative Assembly,

Debates, Sydney, 5 May 2001, p. 233, viewed 9 August 2011, http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20110505005?open&refNavID=HA8_1 16. C Evans (Minister for Tertiary Education, Skills, Jobs and Workplace Relations), Way clear for Western Australia to join national system, media release, 7 July 2011, viewed 9 August 2011,

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F904265%22

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Unions have sought to retain two vestiges from the NSW OHS law.18 These go to the right of a NSW union to prosecute an OHS breach on behalf of a member and to the ‘reverse onus of proof’ applying in NSW OHS law prior to the March 2011 change of NSW government.19

These issues aside, it is unwise to underestimate the debate and discussion that has helped form the Bill, nor support for the Bill from the general community:

While much has been made of the fact that this new legislation will reduce compliance costs, its real benefit will be a reduction in workplace accidents. This is because the expansion of people who have a duty under the legislation will cause everyone to take a greater interest in safety matters. For this reason alone, it is in the interest of employers and workers alike that this new legislation is passed into law...

Despite the noises we have heard about particular states reneging on their promise to harmonise their OHS laws, these changes are overwhelmingly supported by the wider community. Accordingly everyone should be proceeding on the basis that the new laws will become operational in January 2012.20

Main issues

Commonwealth statutes which contain criminal offences and financial penalties are generally drafted in accordance with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (the Guide).21 In particular, the Guide provides that a ‘fine should be expressed in penalty units’22 on the grounds that it assists in adjusting penalties upwards in line with inflation.23

17. ‘Employers express concerns and some support for OHS harmonisation’, Workplaceinfo.com.au, 13 April 2011, viewed 21 July 2011, http://www.workplaceinfo.com.au/legislation/ohs/employers-express-concerns-and-some-support-for-ohs-harmonisation.

18. For example, Australian Manufacturing Workers’ Union, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into the Work Health and Safety Bill 2011, July 2011, viewed 9 August 2011, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=c872c5a1-455c-4e97-ae2d-a964aa250753

19. The reverse onus of proof requires an employer to prove that he or she took all reasonably practicable steps to prevent a workplace accident: section 110, Occupational Health and Safety Act 2000 (NSW). 20. CCH , ‘Leading safety lawyer cautions against scepticism of OHS harmonisation,’ Australian OHS Tracker, Issue 9, December 2010, viewed 20 July 2011,

http://intelliconnect.wkasiapacific.com/scion/secure/index.jsp?node1=industrial_relations&crc1=3EDEC6056F00762 B&da=WKAP_TAL_1138573&link_type=7&1255493698557=#page[24]. 21. Attorney-General’s Department, Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, December 2007, viewed 17 August 2011,

http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(084A3429FD57AC0744737F8EA134BACB)~A+Guide+to+Frami ng+Commonwealth+Offences,+Civil+Penalties+and+Enforcement+Powers.PDF/$file/A+Guide+to+Framing+Common wealth+Offences,+Civil+Penalties+and+Enforcement+Powers.PDF 22. At present section 4AA of the Crimes Act 1914 provides that a ‘penalty unit’ means $110. 23. Attorney-General’s Department, op. cit., p. 44.

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This Bill does not use penalty units, rather all financial penalties are expressed in dollar amounts. The rationale for this is to ensure uniform penalty amounts in each of the jurisdictions which enact the model legislation.

Financial implications

The Explanatory Memorandum accompanying the Bill states:

As part of the 2011-12 Budget Comcare received $14.7 million (which includes $7.1 million in capital funding) to implement nationally harmonised model work health and safety laws within the Commonwealth jurisdiction. 24

Key provisions

Part 1—Preliminary

Clause 2 provides for commencement on 1 January 2012, consistent with the IGA and subsequent transitional and consequential legislation.

Clause 3 sets out the main object of the WHS Act (when enacted), which is to provide a balanced and nationally consistent framework to secure the health and safety of workers and workplaces, and to use the means of risk management to apply the overriding principle that workers, and other persons, should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work.

Clause 4 includes a dictionary of key terms used in the Bill including: ‘compliance powers’, ‘employee record’, ‘health’ and others. ‘Officer’ is defined by reference to the ‘officer’ definitions in section 9 of the Corporations Act 2001. It also includes ‘officers’ of the Commonwealth and ‘officers’ of public authorities.

The principal duty holder under the WHS Act (when enacted) is a ‘person conducting a business or undertaking’ (PCBU). Clause 5 provides that a person may be a PCBU whether the person conducts a business or undertaking alone or with others, or the business or undertaking is conducted for profit or gain or not. The term ‘person’ will cover persons including individuals and bodies corporate, partnerships and unincorporated associations. The phrase ‘business or undertaking’ is intended to be read broadly and covers businesses or undertakings conducted by persons including employers, principal contractors, head contractors, franchisors and the Commonwealth. The WHS Act (when enacted) will cover householders where there is an employment relationship between the householder and a worker, subject to a number of exclusions.

24. Explanatory Memorandum, Work Health and Safety Bill 2011, p. 5.

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Clause 6 defines the term ‘supply’ broadly to cover both direct and indirect forms of supply, such as the sale, re-sale, transfer, lease or hire of goods in a company that owns the relevant goods, subject to exclusions. A ‘supply’ is defined to occur on the passing of possession of a thing from either a principal or agent to the person being supplied.

Under clause 7 a broad definition of ‘worker’ instead of ‘employee’ is adopted. A ‘worker ‘ is a person who carries out work in any capacity for a PCBU, including work in any of the capacities listed in the provision, such as practical training as part of a course of education or vocational training. Importantly, a self-employed person may simultaneously be both a PCBU and a worker for purposes of the Bill.25

Clause 8 defines ‘workplace’ to mean a place where work is carried out for a business or undertaking. It includes any place where a worker goes, or is likely to be, while at work (for example, areas such as corridors, lifts, lunchrooms and bathrooms) and extends to off-shore work subject to the exclusions set out in clause 12A.

Clause 10 provides for the Commonwealth to be bound by the WHS Act (when enacted), and clarifies that the Commonwealth is liable for an offence against the WHS Act (when enacted). The WHS Act (when enacted) applies to places of Commonwealth employment and extends to the Territories.

Clause 11 provides for extraterritorial application in certain matters.26

Part 2—Health and safety duties

Duties of persons conducting a business or undertaking

Duties of ‘persons conducting a business or undertaking’ are set out in Divisions 2 and 3 of Part 2 to the Bill. Clause 19 imposes the primary duty of care which applies to a PCBU. The PCBU must ensure, so far as is reasonably practicable, the health and safety of workers that are: • directly engaged by the PCBU to carry out work for his or her business or undertaking

• placed with another person to carry out work for that person, or

• influenced or directed in carrying out their work activities by the person.

Subclause 19(2) extends the primary duty of care owed by a PCBU to ensuring that, so far as is reasonably practicable, the health and safety of all other persons is not put at risk from the carrying out of work as part of the conduct of the business or undertaking. Subclause 19(3) outlines the key things a PCBU must do in order to satisfy the primary duty of care. In addition to providing a safe work environment, the PCBU must ensure the provision of adequate facilities (for example,

25. Subclause 7(3) of the Bill. 26. Other relevant extraterritorial rules may be included in general criminal laws, ‘crimes at sea’ laws, Commonwealth maritime laws and acts interpretation laws.

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washrooms), the training, instruction or supervision that is necessary to protect all persons from health and safety risks and the monitoring of workplace conditions. Subclause 19(4) requires workers’ accommodation provided by a PCBU in the course of performing work, to be maintained so that the worker occupying the premises is not exposed to risks to health and safety. Subclause 19(5) requires a self-employed person to ensure his or her own health and safety while at work.

Clauses 20-22 set out the additional health and safety duties a PCBU has if the person is: managing a workplace; has control over fixtures, fittings or plant at a workplace or designs plant, substances or structures.

Clauses 23-26 set out the duties for a PCBU who manufactures, imports or supplies plant, substances or structures that are to be used or could reasonably be expected to be used at a workplace.

All of the duties which are contained in clauses 19-26 require the PCBU to ensure health and safety by managing risks, which involves eliminating the risks, so far as is reasonably practicable, but if not reasonably practicable, to minimise the risks.

Clause 18 provides guidance about what is ‘reasonably practicable’ when complying with duties. A person must take into account and weigh up all relevant matters, including: • the likelihood of the relevant hazard or risk occurring

• the degree of harm that might result

• what the person knows or ought reasonably to know about the hazard or risk and the ways of

eliminating or minimising the risk, and • the availability and suitability of ways to eliminate or minimise the risk.

Clauses 13-16 provide that duties under the WHS Act (when enacted) are non-transferable. A person can have more than one duty and more than one person can concurrently have the same duty.

Duties of officers, workers and other persons

Duties of officers, workers and other persons are set out in Division 4 of Part 2 of the Bill. Clause 27 requires officers of a PCBU to exercise ‘due diligence’ to ensure that the PCBU complies with any duty or obligation under the WHS Act (when enacted). Maximum penalties for these offences by officers are specified in clauses 31-33. Subclause 27(3) sets the maximum penalties if an officer fails to exercise due diligence to ensure the PCBU complies with other duties and obligations under the WHS Act (when enacted). Subclause 27(5) defines ‘due diligence’ as including taking reasonable steps to acquire and keep up-to-date knowledge of work health and safety matters and to ensure the PCBU has, and implements, processes for complying with any duty or obligation the PCBU has under the WHS Act (when enacted).

Clause 28 sets out the health and safety duties of workers. Workers have a duty to take reasonable care for their own health and safety while at work and also to take reasonable care so that their acts

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or omissions do not adversely affect the health and safety of other persons at the workplace, and must comply with reasonable directions from the PCBU.

Clause 29 sets out the health and safety duties applicable to all persons while at a workplace. This is intended to include customers and visitors to a workplace.

Offences and penalties

Division 5 of Part 2 of the Bill sets out the various offences which arise from a breach of the duties imposed by the WHS Act (when enacted). Contraventions of the WHS Act (when enacted) and regulations are generally criminal offences. The Bill provides for three categories of offences against ‘health and safety duties’—that is the duties imposed by Divisions 2, 3 and 4 of Part 2.

Subject to the exceptions set out in clause 34 (volunteers and unincorporated associations), clause 31 provides that a person commits a Category 1 offence if the person has a health and safety duty and the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness and the person is reckless as to the risk to an individual of death or serious injury or illness.

Subclause 31(1) sets the following maximum penalties for a Category 1 offence: • where the offence is committed by an individual (other than as a PCBU or its officer): $300 000,

or 5 years imprisonment, or both • where the offence is committed by an individual or officer of a PCBU: $600 000, or 5 years

imprisonment, or both • where the offence is committed by a body corporate: $3 000 000.

Subclause 31(2) states that the prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

Clause 32 provides that a person commits a Category 2 offence if the person has a health and safety duty and the person fails to comply with that duty and the failure exposes an individual to a risk of death or serious injury or illness.

The following are the maximum penalties for a Category 2 offence: • where the offence is committed by an individual (other than as a PCBU a business or undertaking

or as an officer of a person conducting a business or undertaking): $150 000 • where the offence is committed by an individual as a person conducting a business or

undertaking or as an officer of a person conducting a business or undertaking: $300 000 • where the offence is committed by a body corporate: $1 500 000.

Under clause 33, a person commits a Category 3 offence if the person has a health and safety duty and the person fails to comply with that duty.

The following are the maximum penalties for a Category 3 offence:

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• where the offence is committed by an individual (other than as a PCBU or as an officer of a

PCBU): $50 000 • where the offence is committed by an individual as a PCBU or as an officer of a PCBU: $100 000

• where the offence is committed by a body corporate: $500 000.

Part 3—Incident notification

Clause 35 defines the kinds of workplace incidents that must be notified to the regulator and that also require the incident site to be preserved. A ‘notifiable incident’ is an incident involving the death of a person, ‘serious injury or illness’ of a person or a ‘dangerous incident’.

Clause 36 defines a ‘serious injury or illness’ as an injury or illness requiring a person to have treatment of a kind specified in paragraphs (a)-(c), including: immediate treatment as an in-patient in a hospital; immediate treatment for a serious injury of a kind listed in paragraph (b); or medical treatment within 48 hours of exposure to a substance at a workplace.

Clause 37 defines a ‘dangerous incident’ in relation to a workplace as one that exposes a person to serious risk to their health or safety arising from an immediate or imminent exposure to the matters listed in paragraphs 37(a)-(l). These matters include an uncontrolled escape, spillage or leakage of a substance, an uncontrolled implosion, explosion or fire and an uncontrolled escape of gas or steam.

Clause 38 requires the PCBU to ensure that the regulator is notified immediately after becoming aware that a ‘notifiable incident’ arising out of the conduct of the business or undertaking has occurred, providing assistance is rendered first to any victim/s.

Clause 39 requires the person with management or control of a workplace where a notifiable incident has occurred to take reasonable steps to ensure that the incident site is preserved until an inspector arrives or until such earlier time as directed by an inspector.

Part 4—Authorisations

Clauses 40-45 stipulate the role for the authorisation of work, workplaces and individuals in certain situations. Authorisations such as licences, permits and registrations are regulatory devices to control activities that are of such high risk as to require demonstrated competency or a specific standard of safety. The provisions include definitions and requirements for authorisations—for example in relation to high risk plant, as well as the role of the PCBU in ‘allowing’ workers to use plant or substances, or not, as well as prescribing supervision, qualifications and experience.

Part 4 also establishes offences where a person does not comply with the requirement for an authorisation.

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Part 5—Consultation, representation and participation

Clause 46 requires duty holders to consult, co-operate and co-ordinate activities with all other persons who have a health and safety duty in relation to the same matter. The maximum penalty for a breach of this duty is $20 000 for an individual and $100 000 for a body corporate.

Consultation with workers

Clauses 47-49 establish the duty to consult with workers on managing work health and safety risks. Clause 47 requires a PCBU to, so far as is reasonably practicable, consult with its workers who may be directly affected by matters relating to work health or safety. Consultation extends to ensuring workers are aware of the reasons for decisions made by the PCBU and hopefully, can understand them.

Clause 48 requires a PCBU to share relevant information about work health or safety matters with its workers and health and safety representatives (HSRs). Consultation must take place at each stage of the risk management process under clause 49. Workers must be given a reasonable opportunity to express their views and contribute to the decision processes relating to those matters. A PCBU must take workers’ views into account and advise workers of relevant outcomes in a timely manner.

Health and safety representatives

Clause 50 provides that a worker may ask a PCBU for whom they carry out work to facilitate elections for one or more HSRs. The worker’s request will trigger the PCBU’s obligation to facilitate the determination of one or more work groups.

Subdivision 2—Determination of work groups

Clause 51 establishes a PCBU’s obligation to facilitate the determination of one or more work groups, following a request under clause 50. The relevant workforce may be divided into work groups to facilitate representation by HSRs in relation to work health and safety matters.27 Subclause 51(3) clarifies that a work group may span one or more physical workplaces. Clause 52 provides that work groups are negotiated and agreed between the relevant parties, while requiring the relevant PCBU to take all reasonable steps to commence negotiations to determine work groups within 14 days of the date of the request under clause 50. Subclause 52(3) specifies the matters that are to be determined by negotiation, such as the number and composition of work groups and the number of HSRs to be elected. Subclause 52(5) prohibits a PCBU from, if asked by a worker, refusing to negotiate with the worker’s representative or excluding the representative from negotiations. Clause 53 requires the PCBU to notify workers of the outcome of negotiations and determination of any work groups, as soon as practicable after the negotiations are completed.

27. Subclause 51(2) of the Bill.

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Clause 54 sets out the process for determining work groups if negotiations under clause 52 fail. Negotiations are taken to have failed if, after 14 days of a request being made under clause 50, or if a party to the agreement requests a variation to an agreement, a PCBU has failed to take all reasonable steps to commence negotiations. A party to the negotiations may ask the regulator to appoint an inspector to decide the matter. An inspector may decide on the relevant matters.28 Subclause 54(4) provides that the inspector’s decision is taken to be an agreement under clause 52.

Subdivision 3—Multiple-business work groups

Clause 55 allows work groups to be determined in relation to two or more PCBUs (multiple-business work groups). Clause 56 limits negotiations for multiple-business work groups to the matters listed in paragraphs 56(1)(a)-(d), including the number and composition of work groups and the number of HSRs. Clause 57 requires a PCBU who is negotiating to vary an agreement for the determination of a work group or work groups to notify workers of the outcome of those negotiations and variations (if any) as soon as it is practicable after negotiations are complete.

Clause 58 establishes a process that allows a party to withdraw from negotiations for multiple-employer work groups and also to withdraw from an agreement. Multiple-employer work groups are only available by agreement between all relevant parties. Clause 59 clarifies that alternative representative arrangements can always be made between two or more PCBUs and their workers, provided that the PCBUs comply with this Subdivision.

Subdivision 4—Election of health and safety representatives

Clause 60 provides that a worker is eligible to be elected as HSR for a work group if they are a member of that work group and they are not disqualified under clause 65. Clause 61 provides that the conduct of the election of HSRs is determined by the workers in the work group for which elections are being held, subject to any procedures which are contained in regulations. Elections may be conducted with the assistance of a union or other person or organisation if the majority of the workers in a work group agree. A PCBU is to provide any resources, facilities and assistance that are necessary or prescribed.

Clause 62 provides that the members of a work group are responsible for electing the HSR or HSRs for that work group and are therefore entitled to vote in the elections conducted for that work group. Under clause 63 an election is not required where the number of candidates for HSR equals the number of vacancies for those positions. Clause 64 provides that an HSR holds office for a maximum term of three years and is eligible for re-election. HSRs may be disqualified from office under clause 65 for performing a function or exercising a power under the WHS Act (when enacted) for an improper purpose, or disclosing any information acquired as an HSR for a purpose unconnected with their role as a HSR. Clause 66 confers immunity on HSRs so they cannot be personally sued for anything done or omitted to be done in good faith while exercising a power or

28. Subclause 54(2) of the Bill.

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performing a function under the WHS Act (when enacted), or in the reasonable belief that they were doing so.

Clause 67 establishes the procedures for the election of deputy HSRs and establishes their powers and functions under the WHS Act (when enacted) and sets out the circumstances in which a deputy HSR may take over the powers and functions of the HSR.

Subdivision 5-Powers and functions of health and safety representatives

Clause 68 confers the necessary powers and functions on HSRs. HSRs represent workers in their work group in relation to health and safety matters at work. HSRs may: monitor a PCBU’s compliance with the WHS Act (when enacted) in relation to their work group members, investigate complaints from work group members about work health and safety matters and inquire into anything that appears to be a risk to the health or safety of work group members. HSRs may inspect the place where any work group member carries out work, accompany inspectors and be present at interviews. They may request the formation of health and safety committee and receive information about the well being of workers.

Under clause 69, HSRs’ and deputy HSRs’ powers and functions under the WHS Act (when enacted) are generally limited to matters that affect their work group members, however they may perform a safety role for another workgroup where no HSR (or deputy HSR) is available and there is a serious risk to health, or a worker requests assistance.

Subdivision 6—Obligations of PCBUs to health and safety representatives

Under clause 70, a PCBU is required to consult with its HSRs; confer with HSRs; give HSRs access to the information; allow HSRs to attend interviews; provide HSRs with resources, facilities and assistance; allow persons assisting HSRs access to the workplace and allow HSRs to accompany an inspector during inspections.

Clause 71 qualifies some of the PCBU’s obligations, ensuring that any personal or medical information released to an HSR cannot identify individual workers. A PCBU may refuse access to HSR assistants (union officials) if they have had their WHS entry permit revoked or on other ‘reasonable grounds’.

Clause 72 requires a PCBU, if requested by a HSR, to allow the HSR to attend training in approved courses with paid time off and to pay course fees and reasonable costs. In any disagreement over course attendance the regulator (that is, Comcare) may appoint an inspector to decide matters in dispute.

Clause 73 allows the sharing of costs between relevant PCBUs in multiple business groups. Clause 74 requires a PCBU to prepare and keep up-to-date lists of their HSRs and deputy HSRs and for these to be displayed in a prominent place at the PCBU’s workplaces (including via intranet). Up-to-date lists must also be forwarded to the regulator.

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Health and safety committees

Clause 75 obliges a PCBU to establish a health and safety committee on the request of one of their HSRs or five or more workers that carry out work for the PCBU, within two months. Under subclause 75(2), a health and safety committee may also be established on a PCBU’s own initiative.

Clause 76 stipulates that the relevant PCBU and the workers must negotiate on how the committee will be constituted. HSRs are automatically members of a relevant workplace’s committee.29 Subclause 76(4) ensures genuine worker representation by requiring at least half of the members of the committee to be workers not nominated by the relevant PCBU.30 Subclauses 76(5)-(7) establish a dispute resolution procedure if the constitution of the committee cannot be agreed between all relevant parties. In that case, an inspector may decide the membership of the committee or that the committee should not be established.

Clause 77 establishes the functions of health and safety committees, including facilitating co-operation between the PCBU and the relevant workers in instigating, developing and carrying out measures designed to ensure work health and safety and also assisting in developing the relevant standards, rules and procedures for the workplace. Under clause 78, committees must meet at least once every three months and also at any reasonable time at the request of at least half of the committee members.

Clause 79 imposes a duty on a PCBU to allow committee members to spend paid time at work to attend meetings of the committee or carry out functions as a committee member. Committee members may access information relating to hazards and risks at the workplace and the work-related health and safety of workers at the workplace, subject to privacy caveats.

Issue resolution

Clause 80 defines the parties to an issue, being: a PCBU (including its representative); any other PCBU who is involved in the issue; the HSRs for any of the affected workers, or the affected workers, or their representatives (where there is no HSR). A PCBU is prohibited from being represented by an HSR.

Clause 81 sets out when the issue resolution process applies, that is, after the work health and safety matter remains unresolved after the matter is discussed by parties to the issue. At that point, the matter becomes a work health and safety issue. Each party must make reasonable efforts to achieve a timely, final and effective resolution of the issue using the agreed issue resolution procedure, or in its absence, the default issue resolution procedure prescribed by the regulations. Subclause 81(3) entitles each party’s representative to enter the workplace for the purpose of attending discussions with a view to resolving the issue.

29. Subclause 76(2) of the Bill. 30. Subclause 76(4) of the Bill.

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Clause 82 gives parties to an issue the right to ask for an inspector’s assistance in resolving the issue if it remains unresolved after reasonable efforts have been made. It applies whether all parties have made reasonable efforts or at least one of the parties has made reasonable efforts to have the work health and safety issue resolved. Subclause 82(3) preserves the rights to cease unsafe work, or direct that unsafe work cease. Subclause 82(4) clarifies that the inspector’s role is to assist in resolving the issue.

Right to cease or direct cessation of unsafe work

Clause 83 defines the term ‘cease work’ for the purposes of Division 6 of Part 5 of the Bill. It includes ceasing or refusing to carry out work. Clause 84 sets out the right of workers to cease unsafe work. A worker has the right to ‘cease work’ if:

• they have a reasonable concern that carrying out the work would expose them to a serious risk to

their health or safety, and • the serious risk emanates from an immediate or imminent exposure to a hazard.

This right is subject to the notification requirements in clause 86 and the worker’s obligation to remain available to carry out suitable alternative work under clause 87 which are discussed below.

Clause 85 establishes a HSR’s power to direct that unsafe work cease where:

• they have a reasonable concern that carrying out the work would expose the work group

member to a serious risk to their health or safety, and • the serious risk emanates from an immediate or imminent exposure to a hazard.

Under subclause 85(3) HSRs must consult with the relevant PCBU and attempt to resolve the work health or safety issue before giving a direction, unless the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction. In that case, subclause 85(4) requires that the consultation is carried out as soon as possible after the direction is given.

Clause 86 requires workers who cease work without HSR direction to notify the relevant PCBU that they have ceased unsafe work as soon as practicable after doing so. It also requires workers to remain available to carry out suitable alternative work. Clause 87 allows PCBUs to re-direct workers who have ceased unsafe work to carry out suitable alternative work at the same or another workplace. Clause 88 preserves workers’ entitlements during any period for which work has ceased under this Division. It does not apply if the worker has failed to carry out suitable alternative work as directed under clause 87. Clause 89 clarifies that inspectors may be called on to assist in resolving any issues arising in relation to a cessation of work.

Provisional improvement notices

Clause 90 sets out the circumstances when an HSR may issue a provisional improvement notice (PIN), that is, if the HSR reasonably believes that a person is, or has, contravened a provision of the

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WHS Act (when enacted) in circumstances that make it likely that the contravention will continue or be repeated. Subclause 90(2) sets out the kinds of things a PIN may require a person to do (for example, remedy the contravention or prevent a likely contravention from occurring). Subclause 90(3) requires HSRs to consult with the alleged contravener before issuing a PIN. Where an inspector may have already dealt with the same matter by issuing, or deciding not to issue, an improvement notice or prohibition notice, subclause 90(5) provides that the HSR cannot issue a PIN.

Clause 91 requires a PIN to be issued in writing. Clause 92 requires a PIN to specify a date for compliance, which must be at least eight days after the notice is issued. Clause 93 allows a PIN to specify certain kinds of directions about ways to remedy the contravention, or prevent the likely contravention, that is subject of the notice.

Clause 94 enables HSRs to make minor changes to a PIN (for example, for clarification or to correct errors or references). Clause 95 requires a PIN to be served in the same way as improvement notices issued by inspectors. Clause 96 allows HSRs to cancel a provisional improvement notice at any time. This must be done by giving written notice to the person to whom it was issued.

Clause 97 establishes the display requirements for a PIN. It requires a person who is issued with a notice to display it in a prominent place at or near the workplace where work affected by the notice is carried out (unless the PIN is stayed).

Clause 98 ensures that a PIN is not invalid merely because of a formal defect or an irregularity. Clause 99 makes it an offence for a person to not comply with a PIN.

Clause 100 sets out a procedure for the review of a PIN by an inspector. Review may be sought within seven days after the notice has been issued by the person issued with the notice.

Clause 101 sets out the procedure that the regulator and the reviewing inspector must follow after a request for review is made.

Clause 102 sets out the kinds of decisions the inspector may make upon review, the persons to whom a copy of the inspector’s decision must be given and the effect of the inspector’s decision on the notice and requires the inspector to give a copy of their decision to the applicant for review and the HSR who issued the notice.

Part 6—Discriminatory, coercive and misleading conduct

Prohibition of discriminatory, coercive or misleading conduct

Clause 104 provides that it is an offence for a person to engage in ‘discriminatory conduct’ for a ‘prohibited reason’. Clause 105 sets out what actions will be ‘discriminatory conduct’ under the WHS Act (when enacted), including:

• certain actions that may be taken in relation to a worker (for example, dismissing a worker or

detrimentally altering the position of a worker: paragraph 105(1)(a)

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• certain actions that may be taken in relation to a prospective worker (for example, treating one

job applicant less favourably than another: paragraph 105(1)(b), and • certain actions relating to commercial arrangements (for example, refusing to enter or

terminating a contract with a supplier of materials to a workplace: paragraphs 105(1)(c) and 105(1)(d).

Clause 106 sets out when discriminatory conduct will be engaged in for a ‘prohibited reason’. The prohibited reasons include discriminatory conduct engaged in because a worker, prospective worker or other person:

• is involved in, has been involved in, or intends to be involved in work health and safety

representation at the workplace by being a HSR or member of a health and safety committee • undertakes, has undertaken, or proposes to undertake another role under the WHS Act (when

enacted) • assists, has assisted, or proposes to assist a person exercising a power or performing a function

under the WHS Act (when enacted) (for example an inspector) • gives, has given, or intends to give information to a person exercising a power or performing a

function under the WHS Act (when enacted) • raises, has raised, or proposes to raise an issue or concern about work health and safety

• is involved in, has been involved in, or proposes to be involved in resolving a work health and

safety issue under the WHS Act (when enacted), or • is taking action, has taken action, or proposes to take action to seek compliance with a duty or

obligation under the WHS Act (when enacted).

Clause 107 provides that it is an offence for a person to request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of clause 104.

Clause 108 prohibits various forms of coercive conduct taken, or threatened to be taken, intentionally to intimidate, force, or cause a person to act or to fail to act in relation to a work health and safety role.

Clause 109 provides that it is an offence for a person to knowingly or recklessly make a false or misleading representation to another person about their rights or obligations under the WHS Act (when enacted), their ability to initiate or participate in processes under the WHS Act (when enacted), or their ability to make a complaint or enquiry under the WHS Act (when enacted).

Criminal proceedings in relation to discriminatory conduct

Clause 110 applies in proceedings for an offence of contravening either section 104 or 107. If the prosecution proves both discriminatory conduct and a prohibited reason for the conduct, it is presumed that the prohibited reason was the dominant reason for that discriminatory conduct unless the defendant proves otherwise on the balance of probabilities. Subclause 110(3) is an avoidance of doubt provision stating that the burden of proof on the defendant outlined in subclause 110(1) is a legal, not an evidential, burden of proof.

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Clause 111 sets out the orders a court may make in a proceeding where a person is convicted or found guilty of an offence under clause 104 or clause 107. In addition to imposing a penalty, a court may make an order that the offender pay compensation, that the affected person be reinstated or re-employed, or the affected person be employed in the position they applied for or in a similar position.

Civil proceedings in relation to discriminatory conduct

Clause 112 provides that an eligible person may apply to the designated court or tribunal for an order such as an injunction, order for compensation or reinstatement of employment. Under clause 113, a proceeding under clause 112 must be commenced no later than one year after the date on which the applicant knew, or ought to have known, that the cause of action arose. Subclauses 113(2)-(4) clarify the way that the onus of proof works in a civil proceeding under clause 112.

General

Clause 114 provides that the making of a civil order in respect of conduct referred to in clause 112 does not prevent the bringing of criminal proceedings under clause 104 or 107 in respect of the same conduct.

Clause 115 ensures that a person may not initiate multiple actions in relation to the same matter under two or more laws of that jurisdiction.

Part 7—Workplace entry by WHS entry permit holders

Clause 116 provides definitions of: an ‘official of a union’, a ‘relevant PCBU’, a ‘relevant union’ and a ‘relevant worker’.

Entry to inquire into suspected contraventions

Clause 117 allows a WHS entry permit holder who suspects a contravention of any of the provisions of the WHS Act (when enacted) that relate to or effect a ‘relevant worker’31 to enter a workplace and exercise any of the rights contained in clause 118 in order to inquire into a suspected contravention of the WHS Act (when enacted) at that workplace.

Clause 118 lists the rights of a WHS entry permit holder to:

• inspect anything relevant to the suspected contravention including work systems, plant,

substances etc

31. ‘Relevant worker’ means in relation to a workplace, a worker (a) who is a member, or eligible to be a member of a relevant union and (b) whose industrial interests the relevant union is entitled to represent and (c) who works at that workplace.

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• consult with relevant workers or the ‘relevant PCBU’ 32 about the suspected contravention

• require the relevant PCBU to allow the WHS entry permit holder to inspect and make copies of

any document that is directly relevant to the suspected contravention other than an employee record, or • warn any person of a serious risk to his or health or safety.

Further provisions deal with compliance with entry requests, penalties for refusal and the burden of proof in a defence.

Clause 119 requires a WHS entry permit holder to provide a prescribed notice, in accordance with the regulations, to the relevant PCBU and the person with management or control of the workplace as soon as is reasonably practicable after entering a workplace under clause 117 to inquire into a suspected contravention. Subclause 119(2) provides that a WHS entry permit holder is not required to comply with the notice requirements if to do so:

• would defeat the purpose of the entry to the workplace, or

• would cause the WHS entry permit holder to be unreasonably delayed in their inquiry in an

emergency situation.

Clause 120 authorises a WHS entry permit holder, subject to notice requirements under subclauses 120(3)-120(5), to enter a workplace to inspect, or make copies of, employee records that are directly relevant to a suspected contravention or other documents directly relevant to a suspected contravention that are held by someone other than the relevant PCBU.

Entry to consult and advise workers

Clause 121 authorises a WHS entry permit holder to enter a workplace to consult with, and advise, relevant workers who wish to participate in discussions about work health and safety matters.

Clause 122 requires a WHS entry permit holder to give notice, in accordance with the regulations, of the proposed entry under clause 121 to consult with workers to the relevant PCBU during the normal business hours of the workplace at least 24 hours and not more than 14 days, before the proposed entry.

Requirements for WHS entry permit holders

Clause 123 requires a WHS entry permit holder to comply with any condition imposed by an authorising authority.33 A WHS entry permit holder must also hold an entry permit under the Fair

32. ‘Relevant PCBU’ means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry. 33. Clause 135 of the Bill allows an authorising authority to impose conditions on a WHS entry permit holder at the time of issuing a permit.

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Work Act or the relevant work health and safety law under clause 124, prior to entering the workplace.

Clause 125 requires a WHS entry permit holder to produce his or her WHS entry permit and photographic identification, such as a driver’s licence, when requested by a person at the workplace.

Clause 126 prohibits the exercise of a right of entry under the WHS Act (when enacted) outside of the usual working hours at the workplace the WHS entry permit holder is entering. This refers to the usual working hours of the workplace the WHS entry permit holder wishes to enter.

Clause 127 provides that when exercising a right of entry, a WHS entry permit holder may only enter the area of the workplace where the relevant workers carry out work or any other work area at the workplace that directly affects the health or safety of those workers.

Clause 128 requires a WHS entry permit holder to comply with any reasonable request by the relevant PCBU or the person with management or control of the workplace to comply with a work health and safety requirement, including a legislated requirement that is applicable to the specific type of workplace.34 Clause 129 prohibits a WHS entry permit holder from entering any part of a workplace that is used only for residential purposes.

Clause 130 protects the identity of workers. This Division sets out the processes for the issuing of WHS entry permits. It also details the process of revocation of a WHS entry permit.

WHS entry permits

Clause 131 allows a union to apply for a WHS entry permit to be issued to an official of the union.

Clause 132 lists the matters the authorising authority, when considering whether to issue a WHS entry permit, must take into account. This includes the objects set out in the WHS Act (when enacted) and the object of enabling unions to enter workplaces for the purposes of ensuring the health and safety of workers.

Clause 133 provides that the authorising authority must not issue a WHS entry permit unless satisfied of the matters listed in paragraphs (a)-(c).

Clause 134 allows the authorising authority to issue a WHS entry permit if it has taken into account the matters listed in clauses 132 and 133.

Clause 135 allows the authorising authority to impose specific conditions on a WHS entry permit when it is issued.

Clause 136 states that the term of a WHS entry permit is three years. Clause 137 sets out when a WHS entry permit expires.

34. Clause 142 allows the authorising authority to deal with a dispute about whether a request was reasonable.

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Clause 138 allows the regulator, a relevant PCBU or any other affected person to apply to the authorising authority for the revocation of the WHS entry holder’s permit, subject to the grounds for revocation listed under subclause 138(2).

Clause 139 provides that the authorising authority must give a ‘show cause notice’ to a WHS entry permit holder if an application for revocation is received and suspend the permit until the authorising authority has decided the application.

Clause 140 allows the authorising authority to make an order to revoke a WHS entry permit or an alternative order.

Dealing with disputes

Clause 141 allows the regulator, on the request of a party to the dispute, to appoint an inspector to assist in resolving a dispute about the exercise or purported exercise of a right of entry. Clause 142 allows the authorising authority, on its own initiative or on application, to deal with a dispute about a WHS entry permit holder’s exercise of a right of entry.

Prohibitions

Clauses 144 and 145 prohibit a person from unreasonably refusing, delaying, hindering or obstructing a WHS entry permit holder who is entitled to enter a workplace.

Clause 146 prohibits a WHS entry permit holder from intentionally and unreasonably delaying, hindering or obstructing any person, or disrupting work.

Clause 147 provides that a person must not act or give the impression of holding a WHS entry permit where they do not.

Clause 148 provides that a person must not use or disclose information or documents obtained by a WHS entry permit holder when inquiring into a suspected contravention, except under specified circumstances.

General

Clause 149 provides for the return of non active WHS entry permits. Clause 150 requires the relevant union to advise the authorising authority if a WHS entry permit holder leaves the union. Clause 151 requires the authorising authority to maintain an up-to-date, publicly accessible register of all WHS entry permit holders in the jurisdiction.

Part 8—The regulator

Clause 152 sets out the regulator’s functions, including advising and making recommendations to the Minister, monitoring and enforcing compliance and providing work health and safety advice and information, promoting work health and safety and conduct and defending legal proceedings under the WHS Act (when enacted).

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Clause 153 confers a general power on the regulator, including the powers and functions that an inspector has under the WHS Act (when enacted).

Clause 155 applies if the regulator believes that a person is capable of giving information, providing documents or giving evidence about either a contravention of the WHS Act (when enacted) or that will assist the regulator to monitor or enforce compliance with the WHS Act (when enacted). In that case, the regulator must serve a written notice on the person requiring the person to do certain things specified in subclause 155(2). According to subclause 155(3) that notice must also state that a failure to comply with the notice is an offence. Although subclause 155(5) does provide that a person who has a reasonable excuse may refuse, or fail to comply, with a requirement under this section, clause 172 operates so that refusal to co-operate on the basis of self incrimination will not be a reasonable excuse for the purposes of Part 8.

Part 9—Securing compliance

Part 9 establishes the WHS inspectorate (clauses 156-159) and provides inspectors with powers of entry to workplaces (clause 163) and powers of entry to any place under a search warrant issued under the WHS Act (when enacted): clause 167.

Part 9 also provides inspectors with powers upon entry to workplaces: clause 171.

Clauses 174-175 deal with an inspector’s powers to seize materials or things. A person may make a claim for compensation if they incur a loss or expense due to entry or seizure under clause 184. An inspector may take an affidavit for any purpose incidental to the exercise of his or her compliance powers during workplace entry: clause 186.

Part 10—Enforcement measures

Clause 191 allows an inspector to issue improvement notices if the inspector reasonably believes a person has, or is, contravening a provision of the WHS Act (when enacted). The content of the notice such as the date for compliance is stipulated in clause 192.

Clause 195 allows an inspector to issue a ‘prohibition notice’ to stop, or prevent, an activity at a workplace, or modify the way the activity is carried out, where the activity involves a serious risk to health or safety of a person emanating from an immediate or imminent exposure to a hazard.

Clause 196 sets out the mandatory and optional content for prohibition notices with respect to the inspector’s decision to issue the notice.

Clauses 198 and 199 allow an inspector to issue non-disturbance notices to the person with management or control of a workplace if it is necessary to ensure non-disturbance of a work site.

Clauses 206 and 207 allow for notices to be varied or cancelled, either by the inspector or by the regulator.

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Clause 210 requires the person to whom an improvement notice, prohibition notice or non-disturbance notice is issued to display a copy of that notice in a prominent place in or near the workplace.

Clause 211 allows the regulator to take remedial action in circumstances where a prohibition notice has not been complied with. Clause 212 allows the regulator to take action to make the workplace safe.

Clause 215 allows the regulator to apply to a relevant court for an injunction to compel a person to comply with a notice.

Part 11—Enforceable undertakings

Clause 216 enables the regulator to accept a WHS undertaking relating to a breach, or alleged breach of the WHS Act (when enacted), with the exception of a breach or alleged breach relating to a Category 1 offence.

Clause 217 requires the regulator to give reasons to the person wanting to make a WHS undertaking a written notice of its decision to accept or reject the undertaking.

Clause 219 provides that it is an offence to contravene a WHS undertaking.

Clause 220 sets out the remedies available to a court where a person contravenes a WHS undertaking, including ordering compliance and the payment of costs.

Clause 221 allows variation or withdrawal of an undertaking, with agreement from the regulator.

Clause 222 prevents prosecution of a person giving an undertaking where that undertaking has been complied with or discharged.

Part 12—Review of decisions

Part 12 establishes the procedures for the review of decisions that are made under the WHS Act (when enacted). In general, reviewable decisions are those that are made by:

• inspectors—these are reviewable by the regulator internally at first instance, and then may go on

to external review, and • the regulator—these go directly to external review.

Clause 223 contains a table that sets out twelve provisions (for example, subsection 54(2)—decision following failure to commence negotiations) allowing the decision of either an inspector to be reviewed internally. Decisions by the regulator are to be reviewed externally.

Clause 224 allows an eligible person to apply for internal review of a reviewable decision within 14 days of the decision first coming to the attention of the eligible person or a longer period as required.

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Clause 225 provides that the regulator may appoint a body or person to conduct internal reviews but cannot appoint the person who made the original decision.

Clause 228 sets out the circumstances in which a reviewable decision is stayed pending the outcome of an internal review.

Part 13—Legal proceedings

Prosecution of offences

Division 1, (clauses 230-233), deals with a number of general matters including prosecution of offences.

Subclause 230(1) provides that proceedings for an offence against the WHS Act (when enacted) may only be brought by the regulator, or an inspector with the written authorisation of the regulator.35 The regulator also must issue and publish on their website, general guidelines on the prosecution of offences and the acceptance of WHS undertakings under the WHS Act (when enacted).

Clause 231 sets out the procedure for a review by the DPP of a regulator’s decision not to prosecute a Category 1 or Category 2 offence.36

Subclause 232 sets out the limitation periods for when proceedings for an offence may begin. Proceedings must generally be commenced within two years after the offence first came to the regulator’s attention.

Subclause 233(1) provides that more than one contravention of one health and safety duty provision by a person in the same factual circumstances may be charged as a single offence or as separate offences.

Sentencing

Division 2 deals with sentencing for offences committed under the WHS Act (when enacted) and provides a range of options for the court. Clause 235 provides that in addition to any penalty that may be imposed or other action that may be taken in relation to an offence, the court may:

• make an adverse publicity order: clause 236

• make a restoration order: clause 237

• make a work health and safety project order: clause 238

• release the defendant on the giving of a court-ordered WHS undertaking: clause 239

• issue an injunction: clause 240, or

• make a training order: clause 241.

35. However clause 230 does not preclude the Commonwealth Director of Public Prosecutions from bringing proceedings for an offence against the WHS Act (when enacted): subclause 230(4). 36. Category 1 and 2 offences are defined in clauses 31 and 32of the Bill and are the more serious offences.

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A court-ordered WHS undertaking enables a court to adjourn proceedings, with or without recording a conviction, for up to two years and make an order for the release of an offender on the condition that an offender gives an undertaking with specified conditions: subclause 239(1).

Infringement notices

Division 3 sets out an infringement notice scheme.

Subclause 243(1) allows the regulator to give a person suspected on reasonable grounds, to have committed an offence an infringement notice for the alleged offence. Subclause 243(4) states that the regulations may prescribe what provisions will be subject to infringement notices.

Subclauses 243(2) and 243(3) provide that one infringement notice must relate to only one contravention of a single civil penalty provision and must be given within 12 months of the day of the alleged contravention.

Clause 243A lists the matters that must be included in an infringement notice and includes, for example, the amount that is payable, the time-frame for payment, and that the notice is providing an option to pay an amount to avoid prosecution. The notice must also state that payment of the infringement notice is not an admission of guilt or liability, nor is the person in receipt of the notice regarded as having been convicted of the alleged offence.

Clause 243D provides that if a person pays the infringement notice amount within the required time (that is, normally 28 days), then any liability is discharged and no further proceedings, either criminal or civil, may be brought.

Clause 243C makes provision for withdrawal of an infringement notice.

Clause 243E is a general provision regarding the infringement notice scheme. It confirms that the Scheme in Division 3 does not require an infringement notice to be given to a person for an alleged contravention, affect the liability of a person for an alleged offence, prevent the giving of 2 or more infringement notices to a person for an alleged contravention, or limit a court’s discretion to determine the amount of a penalty.

The Commonwealth

Division 5 deals with offences committed by the Commonwealth.

Subclause 245(1) provides that if the Commonwealth is guilty of an offence against the WHS Act (when enacted), the penalty to be applied is the penalty applicable to a body corporate. Commonwealth includes any person or body, other than a public authority, that is an agency within the meaning of section 4 of the Financial Management and Accountability Act 1997.

Subclause 245(2) provides that conduct engaged in on behalf of the Commonwealth by an employee, agent or officer of the Commonwealth is also conduct engaged in by the Commonwealth. The conduct must be within the actual or apparent scope of the person’s employment or authority.

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An officer of the Commonwealth is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Commonwealth. A Minister of a state or the Commonwealth is not in that capacity an officer: clause 247.

Subclause 248(1) provides that certain notices for service on the Commonwealth may be given to or served on the relevant responsible agency. The relevant notices are provisional improvement notices, prohibition notices, non-disturbance notices, infringement notices or notices of WHS entry permit holder entry.

Subclause 248(4) provides that the responsible agency in respect of an offence is entitled to act for the Commonwealth in proceedings against the Commonwealth for the offence. Subclause 248(6) defines the expression ‘responsible agency’ and includes rules governing what happens if the relevant agency of the Commonwealth has ceased to exist.

Subclause 248(5) allows the prosecutor, or the person bringing the proceedings, to change the responsible agency during the proceedings with the court’s leave.

Public authorities

Division 6 deals with offences committed by public authorities. Public authorities in this case are defined as bodies corporate: clause 249.

Subclause 250(1) provides that proceedings under the WHS Act (when enacted) can be brought against a public authority in its own name.

Subclause 251(1) provides that conduct engaged in on behalf of a public authority by an employee, agent or officer within the actual or apparent scope of their employment or authority is conduct also engaged in by the public authority. An officer of a public authority is defined in clause 252 in much the same terms as the definition for officer of the Commonwealth.

Clause 253 allows action to be taken against a successor of a public authority where the public authority has been dissolved.

WHS civil penalty provisions

Division 7 provides for WHS civil penalty proceedings. Clause 254 clarifies that a provision in Part 7 of the WHS Act (when enacted) is a ‘WHS civil penalty provision’ if it is identified as such in that Part or in regulations made under the WHS Act (when enacted). Part 7 contains right of entry offences subject to a civil penalty regime.

Clause 255 provides that, subject to this Division, court proceedings may be brought against a person for a contravention of a WHS civil penalty provision.

Subclause 256(1) provides that a person who is ‘involved in’ a contravention of a WHS civil remedy provision is taken to have contravened that provision. A person will be ‘involved in’ a contravention of the civil remedy provision only if they have been involved in one of the acts listed in paragraphs

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(a) to (d) (subclause 256(2)). For example, if the person has aided and/or abetted the contravention, or conspired in, the contravention.

Clause 257 clarifies that it is not a criminal offence to contravene a WHS civil penalty provision.

Clause 258 requires a court to apply the civil proceeding rules of evidence and procedure when hearing proceedings for a contravention of a WHS civil penalty provision.

Section 259 deals with court orders. In a proceeding for a contravention of a WHS civil penalty provision, subclause 259(1) provides that the court may order the person to pay a monetary penalty and make any other order it considers appropriate, including an injunction.

Clause 260 provides that proceedings for a contravention of a WHS civil penalty provision can only be brought by the regulator, or by an inspector authorised in writing by the regulator. Authorisation may be granted generally or to bring proceedings in a particular case. The limitation period for bringing proceedings is two years after the contravention first came to the regulator’s notice: clause 261.

Clause 263 protects a person from ‘civil double jeopardy’—that is, a person cannot be subjected to a penalty or court order for one course of conduct under more than one Commonwealth, state or territory law.

Clauses 264 to 266 deal with the interaction between civil and criminal proceedings. A WHS civil penalty proceeding is stayed if criminal proceedings are brought against the person for the conduct: clause 264. However If the person is not convicted of the criminal offence, subclause 264(2) allows the proceedings for the civil contravention to be resumed.

Clause 265 provides that regardless of any court order made under clause 259 for a contravention of a civil penalty provision, criminal proceedings may be commenced against the person for conduct that is substantially the same as the conduct constituting the civil contravention.

Evidence given in respect of a WHS civil penalty proceeding is not admissible in criminal proceeding where the same conduct would ground both actions: clause 266.

Part 14—General

Clause 268 provides for the offence of giving false or misleading information.

Clause 269 provides that a person is not required to produce a document disclosing information or otherwise provide information that is the subject of legal professional privilege.

Clause 270 provides that inspectors and others engaged in the administration of the WHS Act (when enacted) are not personally liable for acts or omissions done in good faith in the execution of their functions.

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Clause 271 prohibits the person who has obtained information or a document in circumstances not covered under Part 7 from disclosing the information.

Clause 272 deems void any term of any agreement or contract that purports to exclude, limit or modify the operation of the WHS Act (when enacted).

Clause 273 prohibits a PCBU from charging workers for anything done or provided relating to work health and safety.

Clause 274 permits the Minister to approve a code of practice for the purposes of the WHS Act (when enacted) and to revoke or vary such a code.

Clause 275 permits duty holders to demonstrate compliance with the WHS Act (when enacted) by following a code or by another method which provides an equivalent or higher standard of health and safety than that provided in a code.

Clause 276 contains broad regulation making powers.

Schedules

Schedule 1 applies the WHS Act (when enacted) to dangerous goods and high risk plant.

Schedule 2 is reserved for provisions to be inserted relating to the establishment of the regulator and local tripartite consultative arrangements.

Schedule 3 details the broad number of matters that may be the subject of regulations.

Appendix

Jurisdictional notes set out in the Appendix enable the WHS Act (when enacted) to complement other laws (for example, police laws and industrial laws) and local mechanisms (for example, regulators, courts, et cetera) that are established in a Commonwealth, a state or a territory.

Concluding comments

This digest is likely to understate the detailed contributions from many authorities and organisations on very particular aspects of the Bill, for example issues to do with the definition and thereby responsibilities of the term, ‘officers duties’.

One minor issue concerns public perceptions of the regulator which the Bill defines as Comcare whereas a regulatory role of another kind will continue to be played by Safe Work Australia.

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Most of the recent debate concerns the impact of the proposed regulations rather than the provisions of the model Bill. For those wishing to explore any of these issues further, the submissions and debates on the Bill’s provisions can be found on the Safe Work Australia website.37

37. Safe Work Australia website, viewed 10 August 2011, http://www.safeworkaustralia.gov.au/Legislation/Pages/ModelWHSLegislation.aspx

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